What Makes a Will Valid? Generally speaking, the following factors must be present in order for your Will to be legal and binding, and more importantly, legally enforceable. (1) A legal will must always be in writing or in written form.
A videotape recording (in most states) of your final wishes is not considered legally valid. (2) The person making the will must personally sign the will. (3) The will must also be duly dated and signed by two (or, in some states, as many as three) competent witnesses. (3) The person making the Will must be competent of sound mind, not considered insane, not senile, or mentally incapacitated, and not acting under the duress or controlling influence of another individual.
Last Will & Testament should always be in writing and duly dated and signed at the end by the testator. Wills which are legally valid have been executed on pieces of scrap paper. To comply with the signing and witnessing legal standards (established by your state law) is more crucial than say the simple appearance of a Will. A Will simply scribbled on a scrap of paper or say a table napkin could be admitted to probate, so long as it incorporates all of the vital elements of a legally valid will.
Is a lawyer required in the preparation of making a will? Absolutely Not! Wills which are created without a lawyer can be legally valid when the proper legal requirements and procedures are followed. There are a number of excellent books (along with computer Will software) covering the subject of Will preparation these days. They outline essential legal issues that you might wish to address and further outline the proper procedures. In most cases, where a person has a relatively simple estate, he or she can benefit by using these self-help books and computer Will software. In his or her case it may be sufficient and work fine.
Being of Sound Mind is a legal term used for making a will. For writing a Will or for a last Will and testament this term is often used. It's quite true, being of sound mind is a crucial part of making a Will or if you prefer the term "Writing a Will." Being of sound mind means you fully understand that you are executing a last will and testament. More importantly, that you're familiar with your personal property as well as your immediate family, relatives and descendants. In some cases, disgruntled relatives and heirs may decide to contest your last Will and testament based on your so-called "mental incompetence," so in these circumstances additional steps need to be enforced at the time of the signing of your last will and testament. One important thing you could do at this time is to have ready a medical assessment of your mental competence.
Why is this so important? Because for your last Will and testament to be legally valid (and, be accepted by a court of law) the Will maker/Testator must be found to be sound of mind. Three important factors of making a will are: (1) It MUST be in writing (2) It must be signed at the very bottom by the testator (which is you) and (3) Your last Will and testament must be witnessed by at least two individuals. And its most testator that all witnesses be present when your will is signed. Remember that, your witnesses cannot be beneficiaries of your estate (or married/defacto to a beneficiary of your estate) and they must be of a legal age in the eyes of the law.
Anyone that is of "legal age" (and, in most states its 18-years of age) and who is deemed sound of mind can go about making a Will. If there is particular property you wish to have divider-up at the time of your death, you should have a last Will and testament drafted on your behalf.
Writing a Will is usually best left to the professionals. When making a Will or writing a Will, you'll need to decide who will be the beneficiaries and who will be the executor. The beneficiaries are individuals (or organizations) will who receive all or part of your property. The executor is somebody you appointed to see that your wishes are fully carried out.
If there are minor children involved, you will also need to appoint a special guardian to help with the physical welfare of your children. It's most common in most states, that a child is recognized by law as an adult once they reach the age of 18-years. As soon as he or she attains that legal age, legal rights are granted to that person. This usually is the case for most U.S. states when it comes to making a Will.
The prime reason for making a Will is to allow for the dispersing of your personal property and assets after your death. By law, you can designate anybody you wish to be your beneficiaries and you can divide your property and assets in any way you desire. However, there are some exceptions to the rule. In some states of the country there are laws which allow a surviving spouse with the legal right to claim much of your estate despite of the provisions in your last Will and testament. As portrayed in modern literature and movies, special provisions may be added in the inheritance. E.g. somebody adds a Will provision that the oldest child in the family is to get the largest portion of the estate. This may make a good story in a movie, but the majority of probate courts today will look down on such provisions.
Generally speaking, spouses are the main beneficiaries in a last Will and testament. Nevertheless, laws abound in most states protecting the surviving spouse from being completely disinherited. In a few states the spouse can actually take a non-compulsory share of the estate. This could be one half of the estate or even one third, in spite of the legal provisions in the Will. A legal means available to disinherit a spouse can sometimes happen because of the use of a prenuptial agreement. However, many courts keep a watchful eye and carefully are apt to closely examine these agreements in order to establish if the agreement was signed with "good intentions" and it contained a full disclosure of the assets. Consultation with a good lawyer can offer sound advice if you wish to place certain limitations on your personal property which you intend to leave to your spouse. This could be by way of a trust fund which comes into existence once you die. The following factors may help you in deciding which type of trust would best suit your circumstances: (1) The chance that your spouse's financial and other needs could increase in the future (2) the style of living which your spouse is normally accustomed to (3) does your spouse have the ability to provide for her or his needs (4) does your spouse know how to manage the trust assets as you wish (5) the possibility that your spouse may wish to remarry at after your death and what affect that may have on your young children.
Often a surviving spouse is left with the entire estate in anticipation he or she will look after your young children. That hope doesn't always work out that way. Unfortunately, this often is not the case when the spouse isn't the biological parent of the child. Or perhaps the spouse can't look after young children. A common provision under such circumstances is the make available in the Will a trust to take care of minor children. This type of trust will secure sufficient financial support for the minor children until they reach the legal age of an adult. At this point in time, the balance assets of the trust will be divided between them. It's crucial to carefully choose the right trustee. Someone you trust and can rely on even after your death. They'll need to manage the trust and make the necessary distribution to the children. In most cases, a trustee will work with the individual you have nominated as the official guardian of your children. Many times the guardian and the trustee are the same person. Estate left to an adult child. In some cases, an adult child will inherit a large portion of their parent's estate. Nevertheless, by law it's possible to disinherit an adult child, regardless of his or her needs or age. Many times a grandparent will leave a specific portion of their property to a grandchild to assist with educational needs and tuition. A grandparent may also leave their entire estate to the grandchildren knowing that the children's parents already are financial and with enough assets.